GAIL SUDBERRY AND MARIE L. SUDBERRY, APPELLANTS,
v.
ALAN D. LOWKE AND EVELYN G. LOWKE, HIS WIFE, AND ABSTRACT AND TITLE CORPORATION OF FLORIDA, APPELLEES
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Buyers sued sellers and a title company for failing to disclose that a mortgage they were assuming would have its interest rate increased from 9.75% to 11% at closing. The court affirmed dismissal against the sellers but reversed dismissal against the title company, finding the title company owed a fiduciary duty to disclose material facts to its principal.
The court affirmed dismissal against the Lowkes because the contract obligated them only to provide lender information, not to guarantee the interest rate, and there was no allegation they knew of the proposed increase. The court reversed dismissal against the title company because, as the buyer's agent, the title company owed a fiduciary duty to disclose all material facts to its principal, and the complaint adequately alleged breach of this duty.
[1] A title company acting as an agent for a buyer has an obligation to disclose all material facts relevant to the agency to its principal.
[2] A cause of action for breach of agency duty is stated when the complaint alleges the duty, a breach of that duty, and resulting damages.
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Join FLexlaw to unlock all legal intelligence“As the agent for the buyer, the title company had an obligation to disclose to its principal all material facts relevant to the agency.”
Establishes the fiduciary duty owed by the title company as the buyer's agent in the closing process.
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Join FLexlaw to unlock all legal intelligenceAppellants contracted to purchase real estate from the Lowkes with a provision to assume an existing mortgage at 9.75% interest. The contract included…
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ORFINGER, Judge.
Appellants contend that the trial court erred in dismissing their second amended complaint with prejudice. The issue on appeal is whether they stated a cause of action against the defendants, or either of them, because the defendants failed and neglected to advise them that the mortgage they were assuming bore interest at 11% per annum instead of the 972% rate for which they had contracted when they agreed to purchase the subject real estate.
The complaint alleges that when appellants contracted to purchase a parcel of real estate from Lowke, both parties selected appellee Abstract and Title Corporation of Florida (Title Company) as closing agent. The contract provided for the assumption by the buyers of an existing institutional mortgage with an interest rate of 972% per annum, and it further provided that if the mortgage contained a provision requiring the lender’s prior approval for assumption of the mortgage, or if the lender had the option to increase the interest rate upon a conveyance of the realty, the buyers had the option to cancel and rescind the contract. The title company received the appropriate mortgage information from the lender, advising that the lender intended to increase the interest to the then current rate. The title company did not notify the buyers of the proposed increase and the transaction was closed. First learning of the increase in the interest rate after the closing, the buyers sought damages against the Lowkes and the Title Company.
With respect to the Lowkes, we find no error in the dismissal of the complaint. There is nothing in the contract which obligates the sellers to convey the property with a 972% mortgage, but merely obligates the sellers to provide a statement from the lender detailing the status of the mortgage. The contract provides that if the lender’s approval is required, or if the lender has the right to and proposes to increase the interest rate, the purchaser may rescind. There is no allegation in the complaint that the Lowkes knew of the lender’s proposed intention to increase the interest rate.
With respect to the dismissal of the complaint against the title company, we find error and reverse. As the agent for the buyer, the title company had an obligation to disclose to its principal all material facts relevant to the agency. Connelly v. Special Road & Bridge District, 99 Fla. 456, 126 So. 794, 71 A.L.R. 923 (1930); 2 Fla. Jur.2d Agency and Employment, § 62 (1977). Count IV of the second amended complaint, addressed to the title company, alleges this duty, alleges a breach of this duty in the failure of the title company to disclose the proposed increase in the inter est rate and damage to the appellants resulting therefrom.1 The trial court therefore erred in dismissing Count IY of the second amended complaint and should have required the title company to respond.
The order dismissing Count III is affirmed, and order dismissing Count IV is reversed and the cause is remanded for further proceedings consistent herewith.
AFFIRMED in part, REVERSED in part and REMANDED.
DAUKSCH, C. J., and COWART, J., concur. . Appellee Title Company suggests that damages were improperly alleged because appellant stated only that they were “required to assume an increased mortgage, not that they had actually done so.” If appellants have no actual damages, this fact will be revealed at trial. At this point, damages are sufficiently alleged.
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Watkins v. NCNB Nat'l Bank OF Fla., N.A., 622 So. 2d 1063 (Fla. 3d DCA 1993)…30 (Fla. 3d DCA 1979). As such, escrow holders have a fiduciary duty to exercise reasonable skill and ordinary diligence. Biadi, 374 So. 2d at 34. Moreover, as agents escrow holders have a duty to disclose all material facts. See Sudberry v. Lowke, 403 So. 2d 1117 (Fla. 5th DCA 1981); Hershey v. Keyes Co., 209 So. 2d 240 (Fla. 3d [*1065] DCA), cert. denied, 214 So. 2d 623 (Fla. 1968). An escrow holder, however, owes a fiduciary duty only to the parties to the escrow transaction. Pope v. Savings Bank of Puget…
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Daniel v. Coastal Bonded Title Co., 539 So. 2d 567 (Fla. 5th DCA 1989)…cause of action for failure to disclose prior to closing [*569] the existence of the easements and encroachments allegedly then known to Coastal. See Connelly v. Special Road & Bridge Dist. No. 5, 99 Fla. 456, 126 So. 794 (1930); Sudberry v. Lowke, 403 So. 2d 1117 (Fla. 5th DCA 1981). Further, if the failure to disclose was done with a fraudulent intent to induce the Daniels to close to promote the title company’s self-interest, count V and VI may also state a cause of action. See Dale v. Jennings, 90 Fla. 23…
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Askew v. Allstate Title & Abstract Co., Inc., 603 So. 2d 29 (Fla. 2d DCA 1992)…d a fiduciary duty to appellant to disclose the later scheduled closing. While a title insurance company’s duty is generally said to be to the buyer (Bjellos; Daniel v. Coastal Bonded Title Co., 539 So. 2d 567 (Fla. 5th DCA 1989); Sudberry v. Lowke, 403 So. 2d 1117 (Fla. 5th DCA 1981)), we see no reason that this must always be the case. The reason the duty is generally to the buyer is that the buyer would, of course, as the new owner, be more interested in the state of the title. In this situation, however,…
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- Connelly v. The Special Rd. & Bridge Dist. No. 5, 99 Fla. 456 (Fla. 1930)